A few weeks ago, a client wrote and said that she was having trouble sleeping at night, worried about what would happen to her rights as a married person if the Obergefell decision was overturned. (And that was before the Supreme Court decisions were issued in the last few weeks!) I thought it would be a good idea for this week’s post, but it’s a long answer, so I’ll continue it next week.
History
Let’s start by going way back to 1996 when Congress passed the Defense of Marriage Act (DOMA), which banned the federal recognition of same-sex marriages and allowed states to refuse to recognize same-sex marriages that had been granted in other states. This was a disaster.
DOMA’s passage led to several challenges that made their way to the Supreme Court, including Windsor vs. US in 2013(which struck down the part of DOMA that banned federal recognition of same-sex marriages), and Obergefell vs. Hodges in 2015, which held that the ban on same-sex marriage was a violation of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.
Obergefell requires all 50 states to perform weddings for same-sex couples and to recognize such unions with all of the same rights and responsibilities that they do in opposite-sex marriages. The decision was 5-4, with several dissents, including ones by Justices Scalia and Thomas arguing, among other things, that this was a legislative matter and should not be decided by the courts.
In 2022, Justice Thomas wrote that Obergefell should be reconsidered because the Court has a duty to “correct the error.” He also applied this to the 1965 decision of Griswold vs. Connecticut (which made it legal for married persons to obtain contraceptives), and the 2003 decision of Lawrence vs. Texas (which legalized the right for adults to engage in private, consensual sex).
In response, later that year, Congress passed (and President Biden signed) the Respect for Marriage Act (RFMA), which repealed DOMA and gave full faith and credit to marriage equality.
The RFMA was very important, because without it, if Obergefell or Windsor were ever to get overturned, we would go back to DOMA! However, it has its limitations: it does not require states to allow same-sex couples to marry. If Obergefell is ever overturned, we will end up with a patchwork of states that allow same-sex marriage and those that don’t.
The short answer to my client’s question is that if she is legally married now, her marriage is protected under the RFMA, even if Obergefell is ever overturned. But I’ll continue my answer next week, with some suggestions.